The following papers were read on this motion pursuant to CPLR 2219(a):

In an action to foreclose a mortgage, plaintiff moves for summary judgment; to strike defendant's answer; to appoint a referee; to amend the caption to drop certain John Doe defendants from the caption and discontinue the action against them; and to declare the non-appearing parties in default (MS # 6). Defendant opposes the motion, and cross-moves for summary judgment dismissing the complaint on various grounds (MS # 7).

"In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default." U.S. Bank, National Association v. Zientek, 192 AD3d 1189, 1190 (2d Dep't 2021) quoting Deutsche Bank Natl. Tr. Co. v. Bowens, 181 AD3d 871, 873 (2d Dep't 2020). A plaintiff may demonstrate it has standing "by establishing that it annexed the subject note, which contained an endorsement in blank, to the complaint when the action was commenced." Wells Fargo Bank, N.A. v. Humphrey, 209 AD3d 1057, 1058 (2d Dep't 2022). Here, the Court finds that plaintiff established its prima facie foreclosure case and demonstrated it has standing to commence this action by producing the note with a blank endorsement.

In support of her cross-motion, defendant alleges that this action should be dismissed as a nullity, because it was commenced against a deceased person. See Federal National Mortgage Association v. Tudor, 185 AD3d 905, 906 (2d Dep't 2020). One of the borrowers under the mortgage, Pasquale F. Gargiulo, died before this action was commenced. However, Pasquale was never named in this action. Joseph Gargiulo, who was named a defendant in the original 2015 complaint, died on January 3, 2021, after this action was commenced. Defendant was substituted for Joseph by subsequent court order. Accordingly, the Court finds that this action was never brought against a dead party and is therefore not a nullity.

Defendant also argues that this action should be dismissed, as plaintiff's predecessor in interest failed to comply with RPAPL 1304 and failed to send a contractually required default notice. Plaintiff claims RPAPL 1304 is inapplicable to the present action, as Pasquale F. Gargiulo, the borrower named in the note, was deceased at the time this action was commenced. However, "where the defendant is referred to as a borrower in the mortgage instrument . . . the record is sufficient to establish that the defendant is a borrower for purposes of RPAPL 1304." Bank of New York Mellon v. Forman, 176 AD3d 663, 666 (2d Dep't 2019). Here, Joseph Gargiulo was named as a borrower in the mortgage and was therefore entitled to the RPAPL 1304 notices.

The Court finds that the plaintiff's predecessor did not demonstrate that it complied with either the RPAPL 1304 or contractual default notice requirements. "A plaintiff demonstrates its compliance with the statute 'by proof of the requisite mailing, which can be established [by] proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure.'" Wells Fargo Bank, N.A. v. Shields, 201 AD3d 1007, 1008-1009 (2d Dep't 2022) quoting Citibank, N.A. v. Conti—Scheurer, 172 AD3d 17, 21 (2d Dep't 2019); see PennyMac Corp. v. Arora, 184 AD3d 652, 655 (2d Dep't 2020). In the instant case, the affidavit of the loan servicer's Foreclosure Manager that plaintiff submits does not attest to the actual mailing of these notices or standard office mailing procedure. Nor does plaintiff submit domestic return receipts of them. The loan servicer's Foreclosure Manager merely states that she reviewed documents from a prior loan servicer that had been incorporated into the present loan servicer's records, which is insufficient to establish compliance with the notice requirements.

Defendant further alleges that this action should be dismissed as plaintiff's predecessor in interest failed to comply with RPAPL 1306. Specifically, defendant claims that the RPAPL 1306 filing indicates there was no loan modification when there was one and omits the borrower's phone number. Under RPAPL 1306(2), "[e]ach filing delivered to the superintendent shall be on such form as the superintendent shall prescribe, and shall include at a minimum, the name, address, last known telephone number of the borrower, and the amount claimed as due and owing on the mortgage . . . " "[C]ompliance with RPAPL 1306 is a condition precedent to the commencement of a foreclosure action." PROF-2013-S3 Legal Title Trust V v. Johnson, 214 AD3d 745, 747 (2d Dep't 2023) quoting Citibank, N.A. v. Conti—Scheurer, 172 AD3d 17, 20 (2d Dep't 2019). As for plaintiff's omission of the loan modification, "[t]he plaintiff's failure to indicate that the loan was modified does not render the filing insufficient to satisfy the requirements of RPAPL 1306." U.S. Bank National Association v. Adams, 202 AD3d 867, 870 (2d Dep't 2022).

However, this Court notes that several other trial courts have found that a plaintiff's failure to list the borrower's last telephone number in its RPAPL 1306 filing is a material defect. In Deutsche Bank National Trust Company as Trustee for GSAMP Trust 2005-WMC3 v. Velasquez, the Suffolk County Supreme Court (C. Stephen Hackeling, J.) found that a plaintiff's failure to list the borrower's "telephone number could possibly impact the State's ability to assist the borrower to prevent foreclosure or to provide counseling services which is the purported statutory purpose for enacting RPAPL 1306," and therefore dismissed the action on that ground. 86 Misc 3d 288, 293 (Suffolk County Sup. Ct. 2025). Similarly, in Brown v. Amarante, the United States District Court for the Southern District of New York (Robert W. Lehburger, Magistrate Judge) denied a summary judgment motion on the basis that plaintiff substituted the number "9999999999" instead of the borrower's telephone number on the RPAPL 1306 filing. 2024 WL 4716364 (S.D.NY 2024). Finally, in Windward Bora LLC v. Durkovic as Trustee of McQueen Family Trust, the United States District Court for the Eastern District of New York (Lee G. Dunst, Magistrate Judge) held that the redaction of the borrower's telephone number on the RPAPL 1306 is an infirmity that necessitates denial of a default judgment motion. 2022 WL 16702694 (E.D.NY). The Court also notes that within the context of the RPAPL 1304, plaintiff's failure to include the telephone number of the Department of Financial Services' toll-free helpline is a facial defect that invalidates the RPAPL 1304 notice. Federal National Mortgage Association v. Williams—Jones, 235 AD3d 953, 955 (2d Dep't 2025).

Arguably, the plaintiff's misstatement of whether the loan was modified, which the Appellate Division, Second Department excuses, is a more egregious defect than the omission of borrower's telephone number. See U.S. Bank National Association v. Adams Supra. The Court notes that the purpose of RPAPL 1306, per the statute itself, is to "enable the superintendent [of financial services] to ascertain the type of loan at issue" so that "[t]he superintendent may subsequently request such readily available information as may be reasonably necessary to facilitate a review of whether the borrower might benefit from counseling or other foreclosure prevention services." Potentially, the statutory purpose is less frustrated by not listing a telephone number than by misstating that a loan was not modified.

However, the Court is unaware of any binding authority on the issue of omitting the borrower's telephone number from the RPAPL 1306 notice. In the absence of authoritative caselaw to the contrary, this Court is compelled to strictly apply the statutory requirements of RPAPL 1306. Plaintiff's failure to provide the borrower's telephone number in its filing is [*2]therefore a defect this Court cannot excuse. For the forgoing reasons, it is

ORDERED that plaintiff's motion for summary judgment (MS # 6) is DENIED; and it is further

ORDERED that defendant's motion for summary judgment (MS # 7) is GRANTED; and this action is DISMISSED.

This constitutes the Decision and Order of the Court.